People v. Alexander , 89 N.E.3d 707 ( 2017 )

2017 IL 120350IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120350)
THE CITY OF CHICAGO, Appellee, v.
TIEG E. ALEXANDER et al., Appellants.
Opinion filed June 15, 2017.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Burke, and Theis
concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Plaintiff, the City of Chicago, charged defendants, members of the “Occupy
Chicago” movement, with violating chapter VII, section B(2), of the Chicago Park
District Code (Chicago Park District Code, ch. VII, § B(2) (amended July 28,
1992)). The circuit court of Cook County dismissed the charges, finding that the
ordinance was unconstitutional on its face and as applied to the defendants. The
appellate court reversed, holding that the ordinance did not violate the defendants’
right to assembly under the first amendment of the United States Constitution. On
remand from this court’s supervisory order directing it to review defendants’ claim
under article I, section 5, of the Illinois Constitution of 1970, the appellate court
again reversed and remanded for further proceedings. 2015 IL App (1st) 122858-B,
¶ 67.
¶2 We allowed defendants’ petition for leave to appeal pursuant to Illinois
Supreme Court Rule 315 (eff. Jan. 1, 2015) to determine whether the ordinance,
which closes all Chicago public parks between 11 p.m. and 6 a.m. and prohibits
people from being inside any park during these hours, is unconstitutional as applied
to defendants under article I, section 5, of the Illinois Constitution (Ill. Const. 1970,
art. I, § 5).
¶3 For the reasons that follow, we affirm the judgment of the appellate court.
¶4 BACKGROUND
¶5 Beginning on September 22, 2011, participants in the “Occupy Chicago”
movement demonstrated in the financial district of Chicago, generally near the
intersection of Jackson and LaSalle Streets. Initially, plaintiff, the City of Chicago
(City), allowed the protestors to remain on sidewalks in the financial district with
no time limitations. The City, however, prohibited the protestors from storing
provisions, erecting structures, or blocking traffic. The Chicago Police Department
(CPD) enforced those restrictions.
¶6 For approximately three weeks, protestors engaged in rallies, marches, protests,
and assemblies in Chicago’s financial district and adjacent downtown areas. CPD
was present to maintain order and assist with traffic control but otherwise engaged
in minimal policing of protestors’ activities. CPD did, however, repeatedly require
the protestors to remove or relocate supplies stored on the sidewalks. In at least one
instance, CPD issued a “move it or throw it away” ultimatum, an order some
protestors believed conflicted with prior CPD instructions.
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¶7 On October 15, 2011, Occupy Chicago demonstrators conducted a rally near
the intersection of Jackson and LaSalle Streets and then marched through the city
for about an hour. CPD directed them to move into Grant Park near the intersection
of Michigan Avenue and Congress Parkway, an area commonly known as
Congress Plaza. After their arrival there, protestors made speeches on a public
address system. Some protestors erected tents and announced their intention to
“occupy” the area.
¶8 During that evening, CPD personnel communicated with protestors and
attorneys from the National Lawyers Guild (NLG) and informed them that
protestors would not be permitted to remain in Grant Park after its posted 11 p.m.
closing time. Specifically, the police informed the protestors and their lawyers that
chapter VII, section B(2), of the Chicago Park District Code (Code) prohibited
persons from remaining in Chicago parks from 11 p.m. to 6 a.m. See Chicago Park
District Code, ch. VII, § B(2) (amended July 28, 1992).
¶9 CPD estimated that approximately 3000 protestors were in Grant Park at
around 7:15 p.m. on October 15, 2011. After repeated warnings about potential
arrests for violation of the Code, the number of protestors in the park decreased to
between 200 and 300 people by about 10:45 p.m. Many protestors who left the park
went to adjacent sidewalks on Michigan Avenue and continued to protest.
¶ 10 At approximately 1 a.m. on October 16, 2011, CPD again used the public
address system to warn protestors about Grant Park’s closure at 11 p.m. Chicago
police officers then asked each protestor individually whether he or she wanted to
leave the park or be arrested. Ultimately, police officers arrested 173 protestors
who refused to leave the park for violating chapter VII, section B(2), of the Code. 1
¶ 11 A few days later, on October 22, 2011, Occupy Chicago protestors staged
another rally in the vicinity of Jackson and LaSalle Streets and again moved their
rally to Grant Park. As before, protestors indicated their intention to remain in
1
Defendants’ initial pleadings misstated the charges against them as being violations of
the Chicago Municipal Code rather than the Chicago Park District Code. Ultimately, the
trial court determined that defendants were charged with violating Chapter VII, section
B(2), of the Chicago Park District Code (Chicago Park District Code, ch. VII, § B(2)
(amended July 28, 1992)).
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Grant Park after its 11 p.m. closure. CPD personnel followed a similar procedure,
warning protestors about potential arrests and affording them the opportunity to
leave. After 12:45 a.m. on October 23, 2011, Chicago police officers asked the
remaining protestors if they wanted to leave the park or be arrested. After these
warnings, 130 protestors were arrested for refusing to leave the park.
¶ 12 All of the protestors arrested on both dates were given court dates. Ninety-two
protestors, the defendants in this appeal, filed motions to dismiss the charges. 2
Eighty of the defendants were represented by NLG, and the remaining twelve
defendants were represented by the law firm of Durkin & Roberts. Both groups of
defendants argued that they were engaged in constitutionally protected expressive
conduct or symbolic speech and that the City selectively enforced the ordinance
against them in violation of their constitutional rights to equal protection.
Defendants noted that the City and CPD let people remain in Grant Park after its 11
p.m. closure for President Obama’s presidential election rally in 2008.
¶ 13 Relevant to this appeal, the NLG defendants also argued that the ordinance
violated their “rights under the First Amendment to the United States Constitution
to freedom of speech, to assemble, and to petition the government for redress of
grievances.” The Durkin & Roberts defendants argued that the charge for violating
the ordinance “fails to constitute an offense under the circumstances of this very
unique case and violates Defendants’ rights to freedom of speech, peaceable
assembly, and to petition the Government for redress of grievances,” as guaranteed
by the first amendment to the United States Constitution and related provisions in
the Illinois Constitution of 1970. On the motion of defendants, the circuit court
consolidated their cases.
¶ 14 The City filed a response, arguing that defendants’ motions to dismiss should
be denied because the ordinance constituted a reasonable time, place, and manner
restriction on the use of Grant Park and the City’s enforcement of the ordinance
was appropriate. The City also argued that the ordinance was applied in a
2
Although the initial motions to dismiss did not cite section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2010)), the parties and trial court later agreed that
those pleadings would be treated as section 2-619 motions to dismiss because this case
involved a civil matter. The parties do not dispute that procedural posture before this court.
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content-neutral manner and left open ample alternative channels of
communication. The City attached three supporting affidavits, two of them from
law enforcement officials involved in supervising the Occupy Chicago protests and
the subsequent arrests.
¶ 15 The third City affidavit was from Deputy Director of Park Services Alonzo
Williams. His affidavit described his duties, outlined the development of the
ordinance that effectively closes Chicago parks during overnight hours, and
defended the ordinance as being necessary to “keep the parks safe, clean, attractive,
and in good condition.” Williams’s affidavit noted that groups could apply for
exceptions if “both the group and its proposed activity comply with our permitting
process.” The fourth and final paragraph of Williams’s affidavit provided
additional justification for the park-closure ordinance:
“4. We believe the Code’s standard hours of closure is [sic] necessary to
properly protect and maintain our parks. The park hours of closure allow park
employees to collect trash, make repairs to park facilities, and maintain the
landscaping. Park employees are therefore able to make sure the parks remain
sanitary and pleasing the [sic] eye with limited disruption and maximum safety
to park patrons. Park closures also ensure that certain park facilities do not
become over-fatigued. Further, limited access by pedestrians during park
closure hours reduces crime against park patrons and park property. As we are
charged with keeping Chicago’s parks beautiful and vibrant for current and
future generations, we have made certain rules to that effect. Round-the-clock
use of the parks by the general public would not further our mandate and would
instead make it impossible to uphold.”
¶ 16 The City also attached decisions from trial courts in Sacramento, Boston, and
San Diego that addressed Occupy movements in those cities. Lastly, the City
attached “Chicago Police Department Special Order 4-22-01,” detailing CPD’s
procedure for issuing administrative notice of ordinance violation citations.
¶ 17 Defendants filed a reply and included supporting affidavits from various
participants in the Occupy Chicago movement.
¶ 18 After oral arguments on the motions, the City filed motions to strike
defendants’ affidavits, and defendants filed a motion for discovery. The court
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denied in part and granted in part the City’s motion to strike the affidavits and
denied defendants’ motion seeking discovery.
¶ 19 On September 27, 2012, the circuit court issued a 38-page “memorandum
opinion and order,” finding chapter VII, section B(2), of the Code unconstitutional
on its face and as applied to defendants. The court held that the ordinance violated
defendants’ right to assembly under both the United States and Illinois
Constitutions. The court explained that “the City’s claim that citizen safety, park
maintenance, and park preservation constitute the substantial government interest
that justifies closing the park seven hours nightly fails because the City routinely
closes the park for fewer than seven hours nightly, making ad hoc exceptions to the
curfew for permitted groups.” The court further explained that the ordinance
“violates the Illinois Constitution which provides a more vigorous right to free
assembly, embracing even non-expressive assemblies.” Lastly, the court concluded
that the ordinance violates defendants’ right to equal protection because it treats
similarly situated citizens differently, noting that the City did not arrest anyone
during President Obama’s rally in 2008, despite their presence in Grant Park after
its 11 p.m. closure.
¶ 20 On appeal, the appellate court reversed the circuit court’s decision but did not
expressly address the trial court’s findings under the Illinois Constitution. This
court denied defendants’ petition for leave to appeal but entered a supervisory order
directing the appellate court to vacate its opinion and review the circuit court’s
judgment that the chapter VII, section B(2), of the Chicago Park District Code
violates the right to free assembly under both the first amendment to the United
States Constitution and article I, section 5, of the Illinois Constitution.
¶ 21 The appellate court vacated its original opinion and issued a new opinion, again
reversing the circuit court’s judgment. Rejecting defendants’ facial challenge under
the first amendment to the United States Constitution, the court reasoned that the
ordinance was not unconstitutional in every circumstance and was not overbroad.
Addressing defendants’ as-applied challenge under the first amendment, the court
applied intermediate scrutiny, traditionally applicable to content-neutral
regulations, and determined that defendants’ first amendment rights were not
violated. 2015 IL App (1st) 122858-B, ¶¶ 28-48.
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¶ 22 Turning to defendants’ claims under the Illinois Constitution, the appellate
court explained that its “review of the 1970 Illinois Constitution debates and
convention supports the conclusion that the framers intended for article I, section 5
to extend a broader right of assembly than that afforded under the United States
Constitution.” Id. ¶ 61. Nevertheless, the appellate court found “nothing to indicate
that the time, place and manner analysis,” which would be applicable to first
amendment claims, “should be abandoned” for defendants’ state claims and, after
applying that analysis, concluded that the ordinance did not violate article I,
section 5, of the Illinois Constitution. Id. ¶¶ 61-65.
¶ 23 This court allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Jan. 1, 2015). We also granted the Illinois Municipal League leave to file an
amicus curiae brief in support of the City. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 24 ANALYSIS
¶ 25 The ordinance at issue in this case prohibits any person from being or remaining
in any city park “between the hours of 11:00 p.m. and 6:00 a.m. on the following
day.” Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992). The
penalty for violating the ordinance is a fine not to exceed $500 and restitution in the
event of property damage. Chicago Municipal Code § 10-36-185 (added Apr. 21,
1999).
¶ 26 Defendants’ petition for leave to appeal sought review of two issues. First,
defendants asked whether the protections afforded by article I, section 5, of the
Illinois Constitution of 1970 are subject to the same “time, place, or manner”
analysis that applies to the first amendment right of assembly. Defendants’ position
is that the Illinois Constitution grants broader protection than the first amendment
and, thus, strict scrutiny applies to an ordinance that restricts the right to conduct
demonstrations in public forums such as parks, at least when the gathering is
political in nature. This question requires this court to decide whether article I,
section 5, of the Illinois Constitution provides broader protection than the assembly
clause of the first amendment to the United States Constitution under this court’s
limited lockstep doctrine. Second, if this court determines that the ordinance is not
subject to strict scrutiny and that the intermediate standard of time, place, or
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manner analysis applies, defendants ask us to apply the analysis “more robustly”
than the appellate court did here.
¶ 27 The Chicago Park District Code has the same force as a municipal ordinance.
Chicago Park District v. Canfield, 382 Ill. 218, 223-24 (1943). Thus, when
considering the validity of a provision of a park district code, we treat it as a
municipal ordinance, applying the same standards that govern a challenge to the
constitutionality of a statute. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill.
2d 390, 406 (2006). A municipal ordinance is presumed constitutional, and the
challenging party has the burden of rebutting that presumption. Id. Unlike a facial
challenge, which requires a showing that the ordinance is unconstitutional under
any set of facts, an as-applied challenge requires a showing that the ordinance
violates the constitution as it applies to the facts and circumstances of the
challenging party. See People v. Rizzo, 2016 IL 118599, ¶ 24.
¶ 28 We review de novo the grant of a motion to dismiss. Richter v. Prairie Farms
Dairy, Inc., 2016 IL 119518, ¶ 18. We also review de novo a determination that a
legislative enactment is unconstitutional. Kanerva v. Weems, 2014 IL 115811, ¶ 33.
¶ 29 The Right of Assembly Under the State Constitution
¶ 30 The question of whether article I, section 5, of the Illinois Constitution provides
greater protection for the right of assembly than the first amendment presents a
question of first impression for this court.
¶ 31 We apply a “limited lockstep” approach when interpreting cognate provisions
of our state and federal constitutions. People v. Caballes, 221 Ill. 2d 282, 297
(2006).
“Under this approach, when the language of the provisions within our state and
federal constitutions is nearly identical, departure from the United States
Supreme Court’s construction of the provision will generally be warranted only
if we find ‘in the language of our constitution, or in the debates and the
committee reports of the constitutional convention, something which will
indicate that the provisions of our constitution are intended to be construed
differently than are similar provisions in the Federal Constitution, after which
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they are patterned.’ ” (Internal quotation marks omitted.) Hope Clinic for
Women, Ltd. v. Flores, 2013 IL 112673, ¶ 47 (quoting Caballes, 221 Ill. 2d at
297).
¶ 32 Defendants argue that the “language and history” of article I, section 5,
“demonstrate that the drafters intended to provide the people of Illinois with greater
rights of assembly than the First Amendment.” They cite Village of South Holland
v. Stein, 373 Ill. 472, 479 (1940), for the proposition that the rights guaranteed by
the state constitution are “even more far-reaching” than those guaranteed by the
first amendment. They further rely upon People v. DiGuida, 152 Ill. 2d 104, 118
(1992), to argue that “where the language of the State constitution, or where
debates and committee reports of the constitutional convention show that the
Framers intended a different construction,” this court should “construe similar
provisions in a different way from that of the [United States] Supreme Court.”
¶ 33 We note that Stein predates the adoption of the 1970 Constitution and both Stein
and DiGuida predate our 2006 decision in People v. Caballes. Neither Stein nor
DiGuida involved the right of assembly. In addition, while DiGuida did, indeed,
say that a state constitutional provision may be construed more broadly than its
federal counterpart, this court declined in that case to construe the right of free
speech in article I, section 4, of the state constitution more broadly than the free
speech clause of the first amendment. Id. at 124.
¶ 34 Defendants also cite Vineyard Christian Fellowship of Evanston, Inc. v. City of
Evanston, 250 F. Supp. 2d 961 (2003), for the proposition that the Illinois
constitutional guarantee of freedom of assembly is broader than the corresponding
guarantee in the United States Constitution. The federal district court in Vineyard
did purport to be applying both the federal and state constitutions to a claim that a
zoning ordinance was unconstitutional. Id. at 979 n.12. However, this dictum
provides no support for defendants’ position in the present case. The case cited by
the district court in its footnote, City of Blue Island v. Kozul, 379 Ill. 511, 520
(1942), did indeed say that “the constitution of Illinois is even more far-reaching
than that of the constitution of the United States in providing that every person may
speak freely, write or publish on all subjects, being responsible for the abuse of that
liberty.” However, this statement refers to article II, section 4, of the Illinois
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Constitution of 1870, not to the peaceable assembly clause of the 1970 Constitution
and, therefore, is not relevant to the current issue.
¶ 35 In addition, the bulk of the defendants’ argument relates to what they describe
as the “wholesale importation” of the first amendment time, place, or manner
analysis into the application of article I, section 5, of the state constitution. This
argument neglects to answer the threshold questions posed by Caballes: does the
language of the state constitutional provision so nearly track the language of the
federal constitution that the provision should be applied in lockstep with federal
precedent? And, if so, is there any reason based in our history to justify a departure
from lockstep? See Caballes, 221 Ill. 2d at 314.
¶ 36 Article I, section 5, of the Illinois Constitution provides that “[t]he people have
the right to assemble in a peaceable manner, to consult for the common good, to
make known their opinions to their representatives and to apply for redress of
grievances.” Ill. Const. 1970, art. I, § 5. The cognate provision of the United States
Constitution is found in the first amendment, which provides, in pertinent part, that
“Congress shall make no law *** abridging *** the right of the people peaceably to
assemble ***.” U.S. Const., amend. I. This right has been incorporated against state
and local governments under the due process clause of the fourteenth amendment.
See De Jonge v. Oregon, 299 U.S. 353, 365 (1937).
¶ 37 Caballes explained that there are “three possible scenarios” to consider when
comparing the language of the state and federal constitutions. A provision may be
“unique to the state constitution,” it may be similar to a provision in the federal
constitution “but differ from it in some significant respect,” or it may be “identical
to or synonymous with the federal constitutional provision.” Caballes, 221 Ill. 2d at
289-90. Thus, the first step in our analysis must be to determine which of these
three categories applies by comparing the assembly clause of the Illinois
Constitution to the assembly clause in the first amendment of the United States
Constitution.
¶ 38 The phrases “to assemble in a peaceable manner” and “peaceably to assemble”
are virtually identical. Both use the verb “assemble”; one uses the adjectival phrase
“peaceable manner,” while the other uses the adverb “peaceably” to convey the
same meaning. On the basis of the language alone, we see no significant difference
between the two constitutions with regard to the right of assembly.
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¶ 39 Defendants, however, point to the history of this provision to suggest that these
virtually identical words convey a different meaning. We, thus, turn to the
evolution of this provision throughout our state’s history.
¶ 40 Illinois became a state on December 3, 1818. Our first state constitution
provided in article VIII, section 19, that “the people have a right to assemble
together in a peaceable manner to consult for their common good, to instruct their
representatives, and to apply to the general assembly for redress of grievances.” Ill.
Const. 1818, art. VIII, § 19. Unfortunately, most of the records of the 1818
Constitutional Convention were lost or destroyed by 1891. See Elliott Anthony,
The Constitutional History of Illinois (1891). We do know that the first state
constitutional convention lasted for three weeks in August 1818 and that the
drafters relied heavily on the constitutions of other states to provide the wording.
Ohio, Kentucky, Tennessee, and Indiana were specifically noted as providing
“[t]he wording of the Illinois Bill of Rights ***, with little thought given to changes
in these basic statements of individual rights.” Janet Cornelius, Constitution
Making in Illinois, 1818-1970, at 16-17.
¶ 41 This provision remained unchanged in the 1848 Constitution, which provided
in article XIII, section 21, that “the people have a right to assemble together in a
peaceable manner to consult for their common good, to instruct their
representatives, and to apply to the general assembly for redress of grievances.” Ill.
Const. 1848, art. XIII, § 21. However, The Constitutional Debates of 1847 contains
no relevant discussion of this provision.
¶ 42 This language was altered slightly in the 1870 Illinois Constitution, which
continued to protect a right to assembly through its guarantee that “[t]he people
have the right to assemble in a peaceable manner to consult for the common good,
to make known their opinions to their Representatives, and to apply for redress of
grievances.” Ill. Const. 1870, art. II, § 17.
¶ 43 Although the fourteenth amendment had been ratified in 1868, the guarantees
of the Bill of Rights had not yet been incorporated against the states. See Barron v.
Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights applied only to the
federal government); United States v. Cruikshank, 92 U.S. 542, 554-55 (1875)
(despite ratification of the fourteenth amendment in 1868, the first and second
amendments to the United States Constitution did not apply to state governments).
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Thus, the drafters of the 1870 Constitution were aware that if the people of Illinois
were to be guaranteed the same rights under state law as they were guaranteed
under federal law, our state constitution would have to expressly protect those
rights. 3 Yet nothing in the record of the 1870 constitutional convention reveals an
intent to do more than that with regard to freedom of assembly; nothing in the case
law decided under that constitution reveals an understanding that the state
constitution was more protective of the right of assembly than the federal
constitution.
¶ 44 The landscape changed in 1937 when the United States Supreme Court
expressly incorporated the first amendment guarantee of freedom of assembly
against the states in De Jonge. 4 After incorporation, a state constitutional provision
that was more protective of the right of assembly than the first amendment would
pass constitutional muster, but a statute that was less protective would violate the
United States Constitution. See Caballes, 221 Ill. 2d at 314 (“[S]tate courts are free
to independently construe their state constitutions to provide more protection than
the federal constitution.”).
¶ 45 Notably, in our 1870 Constitution, no comma appeared after the words
“peaceable manner.” Thus, the 1870 constitution protected the right to assemble for
3
Incorporation of provisions of the United States Constitution against the states
pursuant to the fourteenth amendment began with Gitlow v. New York, 268 U.S. 652, 666
(1925) (assuming, arguendo, that the first amendment right of freedom of speech is one of
the liberties protected from impairment by the states under the due process clause of the
fourteenth amendment).
4
For example, prior to incorporation of the religion clauses of the first amendment (see
Everson v. Board of Education, 330 U.S. 1 (1947) (establishment of religion); Cantwell v.
Connecticut, 310 U.S. 296 (1940) (free exercise of religion)), this court held in People
ex rel. Ring v. Board of Education of District 24, 245 Ill. 334, 338 (1910), that the first
amendment to the federal constitution prohibits Congress, but not the states, from “making
any law respecting an establishment of religion or prohibiting the free exercise thereof.”
Further, this court noted that the states “are thus left free to enact such laws in respect to
religion as they may deem proper, restrained only by the limitations of the respective State
constitutions.” Id. In Ring, this court held that a practice of Bible reading, hymn singing,
and praying in the public schools violated article VIII, section 3, of the Illinois Constitution
of 1870. Id. at 352.
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three enumerated purposes: “to consult for the common good, to make known their
opinions to their representatives and to apply for redress of grievances.” Giving
effect to the presence of commas in a series of restrictive clauses, 5 it did not protect
the right to assemble for any other purpose.
¶ 46 In the years between 1937 and 1970, this court did not have occasion to address
or resolve this apparent tension between the two provisions. If the issue had been
presented, it would have been necessary to conclude that the Illinois provision was
unconstitutional. The question was not clearly addressed in City of Chicago v.
Joyce, 38 Ill. 2d 368, 371 (1967), when this court affirmed the conviction for
disorderly conduct of a protestor who blocked entrance to city hall and obstructed
pedestrian traffic on the basis that such conduct “has no connection with the
constitutional protections she seeks to invoke.” The defendant’s argument did not
specify whether she was claiming violation of the state or federal constitution, and
this court did not distinguish between the state constitutional guarantee of freedom
of assembly and the first amendment guarantee. However, in reaching its decision,
this court relied on Cox v. Louisiana, 379 U.S. 536, 554 (1965), thus implicitly
acknowledging that federal precedent applied.
¶ 47 In 1965, the Illinois General Assembly created the Illinois Constitutional Study
Commission. A comment by Melvin Rishe was submitted to the Commission. See
Melvin Rishe, Comment, Freedom of Assembly, 15 DePaul L. Rev. 317 (1966).
This comment provides useful insight into the history of the provision and its
subsequent amendment in the 1970 Constitution.
¶ 48 The author noted that by 1965, “[a]ll but two states constitutionally
guarantee[d] the right of assembly,” and most of the state assembly clauses were
“similar to the provision of the first amendment.” Id. at 336. However, the
constitutions of “[t]hirty nine states, including Illinois, ha[d] qualified the right of
5
See, e.g., Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 374 (2007)
(concluding that the absence of a comma in a policy limitation provision indicated a series
of restrictive clauses that identified or defined the antecedent noun (citing William Strunk
& E.B. White, The Elements of Style 3-4 (3d ed. 1979) (discussing restrictive and
nonrestrictive clauses)).
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the people peaceably to assemble, by inserting the phrase ‘for the common good.’ ”
(Emphasis in original.) Id. The author observed that:
“It is somewhat strange that this clause should have found its way into so many
of the states’ constitutions and not into the federal constitution. At the
Constitutional Convention of 1787, the delegates, contending that the
Constitution should contain a declaration of freedoms, proposed amendments
for this purpose and most of the clauses pertinent to the right of assembly
contained the phrase ‘for the common good.’ Yet, when the Bill of Rights was
adopted by the Convention, this phrase was deleted from the guarantee of
assembly.” Id. (citing Edward Dumbauld, The Bill of Rights 172-205 (1957)).
¶ 49 The author rejected the suggestion that this exclusion was inadvertent, noting
that the framers of the constitution and the Bill of Rights “were extremely careful in
their choice of words so that there is reason to believe that there was a purpose in
drafting the first amendment without the proposed phrase for the common good.”
(Emphasis in original.) Id. at 336-37.
“The historical setting of the constitutional Convention and the court’s
interpretation of the right of assembly point out that,
‘[n]o purpose in ratifying the Bill of Rights was clearer than that of securing
for the people of the United States much greater freedom of religion,
expression, assembly, and petition than the people of Great Britain had ever
enjoyed. It cannot be denied, for example, that [the] restrictions upon
assembly then prevalent in England would have been regarded as measures
which the Constitution prohibited the American Congress from passing. . . .
Ratified as it was while the memory of many oppressive English restrictions
on the enumerated liberties was still fresh, the First Amendment cannot
reasonably be taken as approving prevalent English practices. On the
contrary, the only conclusion supported by history is that the unqualified
prohibitions laid down by the framers were intended to give [the liberties
enumerated] the broadest scope that could be countenanced in an orderly
society.’ ” Id. at 337 (quoting Bridges v. California, 314 U.S. 252, 265
(1941)).
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¶ 50 The author further explained that “[t]he clause, for the common good, qualifies
an otherwise unqualified provision: it is ambiguous and undefined. Few Americans
will consider a meeting to advocate fascism for the common good. *** A meeting
condemning Negroes and Jews does not serve the common good, but the United
States Supreme Court has held such an assembly guaranteed by the constitution.”
Id. (citing Terminiello v. City of Chicago, 337 U.S. 1, 4-5 (1949) (reversing this
court’s affirmance of a conviction for disorderly conduct on the basis that De Jonge
had incorporated the right of assembly against the states and that the city ordinance
was too restrictive of first amendment rights)). As author Rishe noted, “Were the
courts truly bound to delve into whether or not an assembly served the common
good, it is likely that many assemblies that have been held to be protected by the
constitution would lose this protection.” Id.¶ 51 Turning to the Illinois Constitution, the author noted that the right to freedom of
assembly in article II, section 17, of the Illinois Constitution of 1870 “differs
substantively from the federal constitution only in the insertion of the ‘common
good’ clause. This is a limitation on the general right ***.” Id. at 338. Taking the
language literally, he opined, many “would be denied their right to assemble
because their assembly does not meet the standard of the common good.” Id.
¶ 52 In light of this background, we turn to the question raised by the parties—the
significance of the insertion of a comma in the 1970 Constitution. Defendants argue
that the addition of this comma creates an independent right to assemble, with no
limitation on its purpose so that it would apply to those that involve traditionally
expressive conduct, like political protests, and those that do not. This, they assert,
indicates that the Illinois provision provides broader rights than the federal
provision.
¶ 53 The records of the 1970 Constitutional Convention, however, demonstrate the
delegates’ awareness of the incorporation doctrine, the link between the state right
of assembly provision and the cognate provision in the United States Constitution,
as well as their intent that the two provisions remain in harmony. For example, the
vice president of the convention observed that existing section 17 was “quite
parallel *** to the First Amendment of the United States Constitution.” 3 Record of
Proceedings, Sixth Illinois Constitutional Convention 1488 (statements of Vice
President Smith). Another delegate referred to the bill of rights in the state
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constitution as “almost surplusage” in light of the guarantees of the federal
constitution but urged retention of Illinois’s language, that is, the common good
clause, for its “historical resonance.” 4 Record of Proceedings, Sixth Illinois
Constitutional Convention 3645 (statements of Delegate Foster).
¶ 54 We conclude that the addition of the comma, as a matter of grammatical
construction, altered the meaning of this section but not in the manner suggested by
the defendants. Under the 1870 Constitution, the right to peaceably assemble was
limited to three purposes: to consult for the common good, to make known opinions
to elected representatives, and to apply for redress of grievances. As such, it had
been out of step with the United States Constitution since 1937, and these
limitations were, therefore, ineffective. See Terminiello, 337 U.S. at 4-5. The
addition of the comma corrected this inconsistency, resulting in a state
constitutional provision that now lists four independent rights: the right of the
people to peaceably assemble, their right to consult for the common good, the right
to make known their opinions to their representatives, and their right to apply for
redress of grievances.
¶ 55 Our conclusion is supported by the 1970 Illinois constitutional debates and
convention. Specifically, Father Francis Lawlor, speaking on behalf of the Bill of
Rights Committee, explained that “[t]he purpose of inserting a comma after the
word ‘manner’ was to assure that the right to assemble in a peaceable manner was
an independent right, not subject to qualification by any of the succeeding phrases.”
3 Record of Proceedings, Sixth Constitutional Convention 1480 (statements of
Delegate Lawlor). Father Lawlor further explained that “people have the right to
assemble in a peaceable manner, even though their purpose is other than to consult
for the common good, or to make known their opinions to their representatives, or
to apply for redress of grievances.” Id. Father Lawlor’s comments echo the
concerns raised by Rishe in his comment.
¶ 56 Further, the official text of the proposed new constitution and the
accompanying explanation that were provided to voters described the change from
the 1870 language to the proposed new language of article I, section 5, as
“requiring only that an assembly for any purpose be peaceable.” 7 Record of
Proceedings, Sixth Illinois Constitutional Convention 2683.
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¶ 57 We therefore hold that because the two provisions are virtually identical in
language and were intended by the drafters of the Illinois Constitution of 1970 to
express the same meaning, the right to assemble guaranteed in article I, section 5, of
the Illinois Constitution of 1970 is to be interpreted and applied in lockstep with the
federal precedents interpreting and applying the assembly clause of the first
amendment of the United States Constitution.
¶ 58 Presence of Language Unique to the Illinois Constitution of 1970
¶ 59 In Caballes, we noted that a provision “may be unique to the state constitution
and, therefore, must be interpreted without reference to a federal counterpart.”
Caballes, 221 Ill. 2d at 289. Article I, section 5, of the Illinois Constitution of 1970
contains such unique language, specifically, the language referring to the right to
consult for the common good and the right to make opinions known to one’s
representatives.
¶ 60 Our holding above is quite similar to our holding in Caballes, where we noted
that article I, section 6, of the 1970 Constitution contained not only the search and
seizure clause but also included “two new clauses, each of which created a right not
expressly stated in the 1870 constitution,” and not contained in the fourth
amendment to the United States Constitution. Caballes, 221 Ill. 2d at 293. These
are the “right to be secure against unreasonable invasions of privacy by the state
and the right to be secure against unreasonable interceptions of communications by
the state.” Id. The presence of this additional language, however, did not affect our
decision to continue to interpret the search and seizure clause of article I, section 6,
of the Illinois Constitution in lockstep with the search and seizure clause of the
fourth amendment to the United States Constitution.
¶ 61 Similarly, the presence of additional language in article I, section 5, does not
weigh against interpreting and applying the assembly clause of the Illinois
Constitution in lockstep with the corresponding clause in the first amendment.
¶ 62 That said, in their reply brief, defendants argue that the ban on overnight
assembly in Grant Park also violates their independent rights under the Illinois
Constitution to “consult for the common good” and “to make known their opinions
to their representatives.”
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¶ 63 We need not determine the contours of these two separate “rights” for two
reasons. First, defendants have forfeited any issues regarding violations of these
separate rights by not raising them as separate issues in their petition for leave to
appeal. Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 320-21 (2008)
(failure to raise an issue in a petition for leave to appeal forfeits the issue on the
merits). Second, even if the argument were properly presented, defendants have
posited no nexus between their desire to exercise these rights and the need to gather
together in Grant Park during the overnight hours. Defendants argue only that their
right to consult with “passers-by” for the common good is impaired by the park’s
closing, when law-abiding members of the public would not be present.
¶ 64 We thus leave for a later date any consideration of the scope of the language “to
consult for the common good, to make known their opinions to their
representatives” and of whether these words protect actions not otherwise protected
by the first amendment.
¶ 65 Application of Time, Place, and Manner Analysis in Lockstep
¶ 66 Under the United States Supreme Court’s jurisprudence regarding the right of
assembly, which we apply in lockstep, this court applies intermediate scrutiny to
content-neutral regulations that affect the time, place, or manner of expression. See
People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001);
People v. Jones, 188 Ill. 2d 352, 356-57 (1999); City of Chicago v. Lynd, 47 Ill. 2d
205, 208-09 (1970); Chicago Park District v. Lyons, 39 Ill. 2d 584, 590-91 (1968).
Under that standard, a time, place, or manner regulation must not only be
content-neutral, it must be “narrowly tailored to serve a significant government
interest, and must leave open ample alternative channels for communication of the
information.” Jones, 188 Ill. 2d at 356-57.
¶ 67 By holding that the lockstep doctrine applies and that we will be guided by
federal precedent, we have rejected defendants’ argument that we should apply
strict scrutiny to an ordinance affecting the right of assembly. Defendants,
however, have argued in the alternative that if intermediate scrutiny is proper, this
court should apply the time, place, and manner analysis “more robustly” than it was
applied by the appellate court.
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¶ 68 In their petition for leave to appeal, defendants argued that the appellate court
erred by relying on the affidavit from the park district official to find that the
ordinance is narrowly tailored to serve a significant government interest; they
argued further that the appellate court’s finding of ample alternative channels of
communication for their protected conduct “defie[d] common sense and
practicality.” In their brief, they argued that the appellate court applied the time,
place, and manner standard “with insufficient rigor,” continuing to invoke the
“broader rights” that they claimed article I, section 5, of the Illinois Constitution
guarantees.
¶ 69 We find it unclear from the defendants’ petition for leave to appeal and their
brief whether this argument is intended to be an argument for departure from
lockstep, which we have already rejected, or an argument that the appellate court
improperly applied the standard mandated by lockstep.
¶ 70 When questioned at oral argument on the exact nature of this argument,
defendants’ counsel confirmed that they sought review only of the appellate court’s
rejection of their Illinois constitutional challenge to the ordinance.
¶ 71 Thus, any claim by defendants that the appellate court failed to properly
conduct intermediate review under the applicable first amendment jurisprudence is
forfeited. Buenz, 227 Ill. 2d at 320-21. Their petition for leave to appeal did not
preserve the application of federal law as a separate issue. Their brief did not argue
this issue except in the context of arguing for a departure from lockstep based on
their claim of broader protection of the right of assembly under the Illinois
Constitution.
¶ 72 We, therefore, agree with the City that defendants have forfeited any challenge
to the appellate court’s application of first amendment jurisprudence and, by logical
extension, to its ultimate conclusion that the ordinance is not unconstitutional as
applied to them.
¶ 73 CONCLUSION
¶ 74 For these reasons, we vacate that portion of the appellate court’s opinion stating
that the Illinois Constitution provides broader protection for the right of assembly
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than the United States Constitution. In all other respects, we affirm the appellate
court’s judgment that rejected defendants’ constitutional challenge to the ordinance
under article I, section 5, of the Illinois Constitution.
¶ 75 Appellate court judgment affirmed.
¶ 76 Circuit court judgment reversed and remanded.
¶ 77 JUSTICE KILBRIDE, dissenting:
¶ 78 The only issue in this case is whether the challenged Chicago Park District
ordinance is unconstitutional as applied to defendants under article I, section 5, of
the Illinois Constitution (Ill. Const. 1970, art. I, § 5), a point confirmed at oral
argument. Remarkably, despite the clear framing of this issue, the majority
concludes that defendants have “forfeited” their substantive as-applied challenge
under the Illinois Constitution. See supra ¶ 72 (determining that defendants have
“forfeited any challenge to the appellate court’s *** ultimate conclusion that the
ordinance is not unconstitutional as applied to them”). I cannot agree. More
critically, because the majority effectively endorses the resolution of an as-applied
constitutional challenge in the absence of an evidentiary hearing and on a record
inadequate to resolve that claim, I must dissent.
¶ 79 Forfeiture “is the failure to make the timely assertion of [a] right.” (Internal
quotation marks omitted.) Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007).
Although an issue may be considered forfeited if not raised in a petition for leave to
appeal (Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 320-21 (2008)),
defendants did, in fact, raise their as-applied constitutional challenge in their
petition for leave to appeal. As the majority correctly acknowledges:
“We allowed defendants’ petition for leave to appeal pursuant to Illinois
Supreme Court Rule 315 (eff. Jan. 1, 2015) to determine whether the ordinance,
which closes all Chicago public parks between 11 p.m. and 6 a.m. and prohibits
people from being inside any park during these hours, is unconstitutional as
applied to defendants under article I, section 5, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 5).” Supra ¶ 2.
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Thus, it is simply inaccurate to claim, as the majority does, that defendants’
substantive as-applied constitutional challenge to the ordinance has been
“forfeited.” Supra ¶ 72.
¶ 80 The majority’s approach is also confusing. Why does the majority bother
conducting a limited lockstep analysis if defendants’ underlying constitutional
claim has been forfeited? It is settled that “cases should be decided on
nonconstitutional grounds whenever possible, reaching constitutional issues only
as a last resort.” In re E.H., 224 Ill. 2d 172, 178 (2006) (collecting cases). If
defendants’ as-applied challenge under the Illinois Constitution is forfeited there is
no need for the majority to engage in its extensive limited lockstep analysis or
conduct any constitutional analysis for that matter.
¶ 81 I also find it unusual for this court to issue initially a supervisory order directing
the appellate court to address the merits of defendants’ claims under the Illinois
Constitution, including their as-applied constitutional challenge, but then decline to
reach that same exact claim when the case returned to this court—as the majority
does now. See City of Chicago v. Alexander, No. 118799 (Ill. May 27, 2015)
(supervisory order) (this court earlier directing the appellate court to vacate its
original opinion in defendants’ case and to “review the circuit court’s judgment that
[the challenged ordinance] violates the right to free assembly under both the first
amendment to the United States Constitution and article I, section 5 of the Illinois
Constitution”); see also People v. Hughes, 2015 IL 117242, ¶ 64 (Burke, J.,
specially concurring, joined by Thomas and Kilbride, JJ.) (asserting that “[i]f an
issue is of such importance to the proceedings that the parties must be ordered to
submit additional briefing, then surely it is a matter that must be addressed by this
court” (emphasis omitted)).
¶ 82 Rather than resolving defendants’ as-applied constitutional challenge on the
questionable basis of forfeiture, I would address it substantively. Both parties have
fully briefed the issue. This case is not only important for the parties but also
involves a matter of public interest. On multiple separate occasions, and as recently
as this year, Illinois citizens have assembled in public forums in Chicago and
throughout the state to engage in constitutionally protected speech activity on a
variety of political, social, and governmental concerns. Defendants also chose to
assemble in a public space. They assembled in Chicago’s Grant Park to protest
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wealth inequality, corporate political influences, and the government’s response to
those issues. Those concerns are undoubtedly shared by many of their fellow
citizens in Illinois, not to mention people across the country.
¶ 83 As this court has long recognized, municipalities are permitted to “adopt
regulatory provisions governing the use of public property to the extent that such
regulations are compatible with constitutional guaranties of free speech and press.”
Chicago Park District v. Lyons, 39 Ill. 2d 584, 587 (1968). Without question, this
principle applies equally to the right to assembly protected by article I, section 5, of
the Illinois Constitution. Unfortunately, by choosing to resolve defendants’
as-applied challenge on the basis of forfeiture, the majority fails to clarify the scope
of permissible governmental restriction on that right.
¶ 84 If the majority were to engage defendants’ substantive challenge under the
Illinois Constitution, I believe they would reach the same conclusion that I do—the
record in this case is woefully inadequate to resolve defendants’ as-applied
challenge under article I, section 5.
¶ 85 To succeed on their challenge to the ordinance, defendants must establish that
the ordinance is unconstitutional as applied to them. People v. Minnis, 2016 IL
119563, ¶ 18 (citing People v. Garvin, 219 Ill. 2d 104, 117 (2006)). It is settled that
an as-applied constitutional challenge is inherently fact intensive because it
depends on the particular facts and circumstances of the challenging party in each
individual case. Minnis, 2016 IL 119563, ¶ 18; In re M.A., 2015 IL 118049,
¶¶ 39-40; People v. Thompson, 2015 IL 118151, ¶ 36. Because of the factual focus
of an as-applied challenge, this court has emphasized that it is fundamentally
different than a facial challenge. See People v. Rizzo, 2016 IL 118599, ¶ 24 (noting
that “[t]his court has recently reiterated that facial and as-applied challenges are not
interchangeable, and there are fundamental distinctions between them”).
¶ 86 Logically, in most if not all cases, an evidentiary hearing will be required to
resolve an as-applied constitutional challenge. This is true because, unlike a facial
challenge, an as-applied challenge generally requires a factual evidentiary basis
related to the specific circumstances of the particular case. Thompson, 2015 IL
118151, ¶ 36. A trial court’s failure to conduct an evidentiary hearing before
declaring an as-applied constitutional violation is improper because “[i]n such a
factual vacuum, a court is not capable of making an ‘as applied’ determination of
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unconstitutionality.” Minnis, 2016 IL 119563, ¶ 19; see also Rizzo, 2016 IL
118599, ¶ 26 (concluding that a circuit court cannot make an as-applied
constitutional ruling in the absence of an evidentiary hearing); People v. Mosley,
2015 IL 115872, ¶ 46 (same).
¶ 87 Here, in one of defendants’ responsive pleadings, defendants suggested that “an
evidentiary hearing may be required if the court determines that it cannot grant
defendants’ motion based solely on defendants’ legal arguments.” Defendants also
filed a motion for discovery. The trial court, however, denied the motion for
discovery and did not conduct an evidentiary hearing. Ultimately, the trial court
determined, in relevant part, that the ordinance was unconstitutional as applied to
defendants under article I, section 5, of the Illinois Constitution of 1970, without
conducting an evidentiary hearing.
¶ 88 In my opinion, the trial court’s ruling on defendants’ as-applied constitutional
issue was premature. This conclusion becomes readily apparent after reviewing the
record. Notably, the record contains minimal evidence on the most critical issues in
this case—whether, as applied to defendants’ case, the ordinance’s nightly closing
of Chicago public parks is narrowly tailored to serve a significant government
interest and whether it allows ample alternative channels of communication. See
People v. Jones, 188 Ill. 2d 352, 356-57 (1999) (for content-neutral statutes that
constitute time, place, or manner restrictions on speech, the key issue is whether the
restriction is narrowly tailored to serve the government’s interest and whether it
allows ample alternative channels of communication).
¶ 89 Chicago’s Grant Park, the historically significant public venue at issue here, is a
vast public space that consists of approximately 319 acres. It is not clear from the
record how much space within that expansive public area was actually used by
defendants. Presumably, it was much less than 319 acres. Nor is there any evidence
in the record on how much time is needed within the nightly 11 p.m. to 6 a.m.
closure to maintain the limited area used by defendants. Defendants note that other
large urban areas, including Washington, D.C., San Diego, and Boston,
successfully maintain 24-hour access to their large public parks.
¶ 90 The bulk of the record consists of affidavits that provide largely irrelevant
general background information but not specific facts that address defendants’
as-applied challenge. Only one of the City’s three affidavits, from Deputy Director
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of Park Services Williams, provides pertinent information on the rationale
underlying the ordinance’s closing requirements. Even that information, however,
consists of a single paragraph that fails to address the circumstances presented here.
Highlighting the sheer lack of information specific to defendants’ as-applied
challenge, the only evidence in the record arguably relevant to defendants’ claims
provides as follows:
“4. We believe the Code’s standard hours of closure is [sic] necessary to
properly protect and maintain our parks. The park hours of closure allow park
employees to collect trash, make repairs to park facilities, and maintain the
landscaping. Park employees are therefore able to make sure the parks remain
sanitary and pleasing the [sic] eye with limited disruption and maximum safety
to park patrons. Park closures also ensure that certain park facilities do not
become over-fatigued. Further, limited access by pedestrians during park
closure hours reduces crime against park patrons and park property. As we are
charged with keeping Chicago’s parks beautiful and vibrant for current and
future generations, we have made certain rules to that effect. Round-the-clock
use of the parks by the general public would not further our mandate and would
instead make it impossible to uphold.”
These generic statements of park policy are not supported by any evidence in the
record, let alone evidence specific to the facts of defendants’ case. See, e.g.,
Thompson, 2015 IL 118151, ¶ 36 (resolving an as-applied constitutional challenge
requires consideration of the facts and circumstances specific to the challenging
party).
¶ 91 Thus, the only evidence in the record pertinent to defendants’ as-applied
challenge consists of conclusory statements from a Chicago Park District official
that fail to address any facts relevant to defendants. Simply put, the record here
cannot reasonably be deemed adequate to address defendants’ as-applied
constitutional challenge. See Horina v. City of Granite City, 538 F.3d 624, 633-34
(7th Cir. 2008) (when reviewing a content-neutral time, place, and manner
restriction on protected speech activity, the government should provide “objective
evidence” showing the restriction serves a government interest under the specific
facts of a case); Weinberg v. City of Chicago, 310 F.3d 1029, 1039 (7th Cir. 2002)
(making similar conclusion and stating that “[u]sing a speech restrictive blanket
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with little or no factual justification flies in the face of preserving one of our most
cherished rights”).
¶ 92 The constitutional right to assembly guaranteed to our citizens under the Illinois
Constitution is central to a healthy democracy and must be zealously guarded. I
disagree with the majority’s implicit acceptance of the City’s meager justification
for the restriction on defendants’ constitutional rights to expressive assembly. A
few conclusory statements from a City representative are insufficient to resolve
such an important issue, and the record contains no other evidence specific to
defendants’ as-applied challenge. Consistent with this court’s refusal to make “as
applied” constitutional determinations without evidentiary hearings, I would
remand this case for an evidentiary hearing on defendants’ as-applied challenge to
the ordinance under article I, section 5, of the Illinois Constitution. See Minnis,
2016 IL 119563, ¶ 19 (refusing to consider an as-applied challenge in the absence
of an evidentiary hearing); Rizzo, 2016 IL 118599, ¶ 26 (determining that a circuit
court cannot make an as-applied constitutional ruling in the absence of an
evidentiary hearing); Mosley, 2015 IL 115872, ¶ 46 (same). For these reasons, I
respectfully dissent.
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